*1 imposition convictions and of findings. In the ceed with his Huggins summarized the three counts. sentences on five fixed-head period there were October that came back October extinguishers CO2 marked and which Huggins had not 1 which opened. He have been
appeared not pound
found seven fixed-head five CO2S had not been marked which had been six two-and-one-half
opened. There were extinguishers Huggins dry chemical pound America, of STATES UNITED not to have been which he found had marked Plaintiff-Appellee, dry pound there was one ten opened, and Huggins marked extinguisher had chemical v. Id. at 130. unopened. which he found JONES, Phillip also known Ellisor Abbott dated Huggins checks to identified Jones, Phillip Defendant- $7,662.46 for the No- for December Appellant. invoice; dated October one vember $7,380.92 September for the for America, UNITED STATES 6,1992, invoice; and one dated November Plaintiff-Appellee, $9,849.94 1992 invoice. for the October the evidence as to are satisfied thát BROWN, Defendant-Appellant. Talfred III, favorable to in the most count taken supports government, amply the verdict 93-4240, 94-4030. Nos. therefore re- guilty against Abbott. We Appeals, States Court of United challenge ject remaining to the sufficien- Tenth Circuit. evidence, adequate find cy which we guilty verdicts on all three support Feb. 1995. against counts Abbott. Rehearing Denied June 1995.
Ill argues defendant-appellant Abbott judge the trial proper course for grant motion for a have been to
would
judgment acquittal on the basis of insuffi- ordering
ciency rather than Appellee’s Brief at 11. As we
new trial. reject arguments explained, we Abbott, on inconsistent
made those based
verdicts, insufficiency asserting and those no error in the record
the evidence. We find divergence between the verdicts
due to the Abbott, and hold that
as to Chambers and we
the evidence was sufficient against on all
guilty verdicts Abbott three
counts of the indictment. REVERSE,
Accordingly, the order de- mistrial,
claring setting the verdicts aside ordering trial. The case is RE- a new
MANDED with directions that against Abbott on the three counts
verdicts pro- court
be reinstated and that the district *2 Ludlow, UT,
Randy City, S. Salt Lake for defendant-appellant Phillip Ellisor Jones. (Scott Lubeck, Atty. Bruce C. Asst. U.S. Matheson, Jr., Atty., with him on M. U.S. briefs), UT, City, plaintiff- for Salt Lake appellee U.S. of America case No. 93-4240. Brass, UT, City, Edward K. Salt Lake briefs, defendant-appellant for Talfred Brown. Matheson, Jr., Atty., M. and
Scott Lubeck, Atty., Bruce C. Asst. U.S. Salt Lake UT, briefs, City, plaintiff-appellee for on the No. U.S. of America case 94-4030. SEYMOUR, Judge; Before Chief Circuit MOORE, SAFFELS, Judge; Circuit Judge.* District MOORE, Judge. JOHN P. Circuit appeals arise from the same trial in These jointly appellants were accused. which both disposi- combine them here for ease of record, reviewing we con- tion. After in its burden of clude the failed judgments of con- proof and thus vacate the viction. Phillip Ellisor Jones
Talfred Brown possession of a controlled were convicted of distribute, 21 substance with intent to U.S.C. 841(a)(1), carrying using § a fire- and of crime, during drug trafficking arm 924(c). § Both raise several issues on U.S.C. sufficiency appeal, but we deal with of the evidence. Highway Patrol Utah
On October Kelley stopped a for Trooper vehicle John by Lori speeding. The vehicle was driven Grove, passenger Tracy Duhart in the seat, and Talfred Phillip Ellisor Jones * Kansas, Saffels, sitting by designation. Judge The Honorable Dale E. Senior the District of the United States District Court for payment, Ms. Grove accept that means of Kel- in the back seat. While one-way tickets. The driver, paid cash for two $402 “observed the ley talked Angeles arrived in Los after two women running marijuana.” After odor of burnt Brown, Mr. who midnight on October 5th. check, to the car and saw he returned
vehicle “Coco,” met was identified Ms. Grove as armrest next to “rolling papers” on the rear *3 Ms. airport. He introduced both them at the Kelley all four Trooper ordered Mr. Jones. companion, Mr. and Ms. Duhart to his Grove and discovered a occupants to exit the car Jones. possession. marijuana “roach” in Mr. Jones’ both the Kelley proceeded to search expected Although apparently Duhart Ms. Denver, and the trunk.1 of the vehicle she an immediate return to interior to make agreed go to the four nonetheless testified plastic searching, he noticed a screw While Angeles in where Mr. Brown a motel Los plastic in the trunk and observed loose night. The next two rooms for the obtained away trunk lining pulled from the trunk was they renting a car to morning, discussed body Looking of the car latch. between facilitate their local drive to Denver. To Kelley lining, Trooper found a and the trunk transportation, Mr. Brown left and returned calling backup, pistol. loaded After in all drove to a with a brown car which approxi- his and discovered resumed search agency. car After what Ms. Duhart rental eighteen mately grams crack cocaine hours, maybe “probably was three testified found the place from the where he inches four,” difficulty in establish- even because of pistol. ing necessary qualifications, Ms. Duhart negotiated charges Having the dismissal name, by paid in for Ms. rented the car her exchange “truthful” against in for her her card.2 Grove’s mother’s credit govern- testimony, Ms. Duhart became bags to Having transferred the women’s principal witness at trial. Even view- ment’s car, trunk of the rental the four drove most favorable to the ing her tale neighborhood to another the two vehicles must, government, it is blatant Ms. return the brown unfamiliar to Ms. Duhart to credulity. Duhart strained the limits of keys to a man gave car. Mr. Brown the car facts, Ms. According to her version of house, in, standing went and re- outside apartment Duhart was at Ms. Grove’s shortly. Brown asked Ms. Grove turned Mr. During that Denver on October 1991. trunk,” and he and Mr. Jones “pop time, many telephone had conver- Ms. Grove car “for a little stood at the rear sations, including several with a friend Los they while.” Ms. Duhart could not see what Angeles called “Coco.” Ms. told Ms. Grove what, anything, they doing were nor hear just up his Duhart “Coco” had broken with saying. were observation to come to Denver but girlfriend and wanted that Mr. Brovm walked out of the house fly suggested alone. Ms. was afraid Grove untucked ... but before he “with his shirt fly Angeles Duhart to Los that she and Ms. in his shirt was tucked in.” went Al- accompany “Coco” back to Denver. group then returned to the motel though Duhart she Ms. testified understood changed where the women showered and going to return immedi- the two women were clothes.3 The four next drove the rental car Denver, ately inexplicably borrowed she girlfriend’s house to obtain to Mr. Brown’s clothing from Ms. and toilet articles Grove belongings. inside and his Mr. Brown went packed bag to take with her. clothes, he and returned with some which airport, put and Ms. trunk other The duo arrived at the Mr. Jones into the purchase they already attempted to tickets with items had stored there while Grove parked at the motel. agent the ticket refused to car was check. When unclear, transpired validity in the six not been and therefore what 1. The of these searches has parties appeal. the time the arose and the in this hours between raised agency. arrived at the rental time agreement indicates the car was 2. The rental (6:55 p.m.). Assuming a "new 3.Ms. Duhart stated Mr. Jones obtained delivered at 18:55 hours, unexplained, purpose. for this took four it is room" transaction Coslet, the United States v. Duhart did not see what Again, Ms. (10th Cir.1993). ear trunk. She none- doing at the
men were his saw Mr. Brown with stated she theless First, extensively relies car, by the and “when as he walked clothes inferences drawn from Ms. Duhart’s testimo- front of the car he did he came back ny, depending heavily upon the facts Mr. assumed, there- have the clothes.” She looked the dashboard and hood under ear.” fore, in the trunk of the put “he those car, spent a few minutes time, she heard no conversation At the same government argues these facts trunk. The men. between the two looking place Mr. for a indicate Brown was drugs gun! govern- hide the and the returned to the front of Mr. Brown then jury could ment also contends the Grove, car, talking while to Ms. “he drawn an inference the women did not travel feeling and he was under the dashboard *4 gun from Denver with the because of the “got He then out and around under there.” jury’s knowledge airport metal assumed of the car where the hood to the front went to detectors would not have allowed them feeling under there.” was around was and carry gun airplane. govern- an the on nothing conducting his while Mr. Brown said guilty are infer- ment also contends there got The two men then into the explorations. bizarre circumstances of Ms. ences the car, journey group began its to Den- and the flying Ange- and Ms. Duhart’s to Los Grove ver. pick up les to Mr. Brown and Mr. Jones and noteworthy juncture, it is that the At this Moreover, driving the their back to Denver. witness, principal the wit- government’s government suggests, Mr. Jones’ failure to could have connected either defen- ness who traveling a “valid to offer reason” Denver cocaine, crack saw gun to the and the dant govern- supports also this inference.4 The any gun package a kind neither a nor points also to Ms. Duhart’s ment remotely resembling package the of crack group waiting that while the was at the side Thus, no evidence in there is. direct cocaine. following stop road the of the tying either defendant the record Kelley, Mr. Brown said he “should have charges formed the basis evidence, items which govern- the smoked him.”5 This Moreover, government against them. argues, a to ment was sufficient for identify any fingerprints on was unable to “knew about conclude the defendants cocaine, gun package them, of crack or drugs, right control over had some to attempted prints from the no one to obtain transportation, and helped or aided in their trunk where those items were delivery interior of the drugs that the were for to someone Consequently, government’s en- found. else.” upon stands or falls
tire case
Second,
argues
government
testimony,
have set forth in its
which we
support
also exists to
that sufficient evidence
entirety.
charge.
18
on the firearms
Under
conviction
Nonetheless,
government argues
924(c),
there
may prove
government
§
U.S.C.
support
convic
evidence to
is sufficient
or carried the fire
defendants either used
claims a
prosecution
requirement
tions. The
reasonable
is satisfied
arm. The use
“ready
found defendants
be
to the firearm
could have
had
access”
defendants
upon
drug
yond
“integral part”
a
doubt
the direct and
of their
and it was an
Ross,
v.
920 F.2d
trafficking.
evidence contained
the rec
United States
circumstantial
(10th Cir.1990).
1530,
court has
drawn
This
ord and the reasonable inferences
1536
requirement was met when
Leop
v.
held that the
from such evidence. United States
(10th
1138,
Cir.1991);
drugs were
ard,
gun
kept
was
at home where
1140
936 F.2d
incriminatory
course,
pro-
permits
inference
obliged
an
Mr. Jones was not
4. Of
any
any explanation
logic.
for his actions.
In
vide
without
event,
apparently
why
asked him
he was
no one
asked,
making
trip,
no one
or if he
explain this state-
effort made to
5. There
Thus,
suggest
reply.
his
his
testified about
ment.
accompanying Mr.
failure to offer a reason for
632
437,
—,
Williams,
distributed. United States
(1992).
(10th Cir.1990),
1397, 1402-03
cert. de
F.2d
nied,
2033,
111
114
500
S.Ct.
U.S.
limiting our
Even with this standard
(1991). Similarly, in
118
a case
L.Ed.2d
evidence,
we find a critical flaw
view
his ear
where a defendant was arrested in
government’s
Recognizing
case.
its en
drug
drugs
indications of
and other
tire
is built
circumstantial
selling nearby
gun
was found under
government depends upon in
sat,
we held
neath the driver’s seat where
carry
principle
its burden. A
ferences
government established use. United
overlooked, however,
pro
has
McDonald,
v.
933 F.2d
1525-26
States
specu
bative inferences “must be more than
(10th
denied,
Cir.),
502
112
cert.
conjecture.”
Corp.
lation and
Sunward
222
116 L.Ed.2d
Williams
S.Ct.
Bradstreet, Inc.,
Dun &
type
and McDonald indicate the
of evidence
Cir.1987)
(10th
(citing Galloway v. United
necessary
gov
a conviction. The
States,
87 L.Ed.
S.Ct.
maintains the evidence in this case
ernment
(1943)).
“A
will not
be allowed
similar.
conjec
engage
degree
speculation
in a
finding guess
or
ture
renders
mere
Alternatively,
government argues
finding
is infirm
possibility. Such
because
may prove
“carrying”
it
defendants were
Sunward,
is not based
the evidence.”
*5
Carrying may
by
gun.
the
be established
(quoting
at 521
Daniels v. Twin
811 F.2d
transporting
gun in a
the
vehicle. United
Home,
1321,
Nursing
Oaks
692 F.2d
1326
(10th
Cardenas,
1528, 1533
States v.
864 F.2d
(11th Cir.1982)). Although we
in
noted
Sun-
denied,
909,
Cir.),
491
109
cert.
S.Ct.
specu
ward a reasonable inference and mere
(1989).
govern
within one foot of the This could fact, jury given torical then the is jury allow the to find that it was intended for opportunity to draw a conclusion because protecting drugs. in use probability there is a reasonable that the proven conclusion flows from the facts. sufficiency We review of evidence Bank, N.A., Pennsylvania Tose First 648 by viewing claims all the evidence (3d Cir.) denied, F.2d 895 cert. 454 U.S. government. most favorable to the The 102 70 S.Ct. L.Ed.2d 208 any court must “determine whether reason Additionally, requirement “the essential is able could find the defendant speculation that mere be not allowed to do Coslet, beyond a reasonable doubt.” duty probative making for facts after due possession F.2d at 1495. A conviction for reasonably possible allowance for all infer with the intent to distribute a controlled sub favoring party ences whose case is at stance, 841(a)(1), may sup § 21 U.S.C. Galloway, at tacked.” ported by possession a finding of constructive at 1089. jury. possession may “Constructive person knowingly permit speculation be found has owner cannot to substitute ship, proof beyond dominion or control over the narcotics a reasonable doubt. Even jurors premises though may and the where the rational believe in narcotics are Id.; Hager, guilt, found.” United States v. 969 likelihood of the defendants’ — (10th denied, case, Cir.), probably they may F.2d cert. did this con- gun to otherwise connect the equiv- the record It cannot be alone. that belief vict on testimony supporting bag. the blue There is without a conviction ocated bag heavy, appeared that it fall. blue seemed must evidence item, bulky oily it had an contain a constitutes government contends What residue, any suggesting nor other evidence simply inferences does not sustain reasonable Indeed, presence of a firearm. from the pros- example, For probability. logical record, equally plausible it is an state of the explo- that Mr. Brown’s suggestion ecution’s bag always in inference that the blue was are inferen- dash and hood under the rations empty. it condition in which was found: gun drugs and attempt to hide the tial of his piles inference one illogical is because argues also the bizarre justify the inference Mr. To another. people four is inferential of conduct of these items, there must trying to hide these was drug trafficking. there is no doubt While possessed items proof some he have been patently Duhart’s version of the events is Ms. proof, suggestion such hide. Without credibility, taking inconsistent and of dubious conjecture. something is trying to hide step imply actions the next to infer bizarre logi- which is inference questionable logic. To illicit conduct is of is of the evidence cally probable on the state step and infer the illicit then take the further something looking for that Mr. Brown was conjec- drug trafficking pure is conduct was he was hood. the dash and What under nothing in the evidence which ture. There Thus, pure speculation. seeking, again, is steps logical led the from would have attempting to hide inference he activity of bizarre trying to something, alone that he was let guilty. verdict logi- drugs, simply does not gun and hide a Finally, he should Mr. Brown’s statement facts. cally from the established flow equivocal. him” at best have “smoked sug- government’s ilk the same Of record, idea what that From the we have no the de- have inferred gestion the *6 no effort meant because there was statement gun possessed the be- must have fendants jury was explain it. We assume the made to carry a firearm on impossible to cause it is means and speculate left to what “smoke” in the Assuming the moment that plane. object smoking that of the the jury have testimony the could of absence attempt no Kelley. government made conclude experience to on common drawn logical, jury it could have drawn a aid the so transported on commercial guns cannot that statement. weighty, inference from not inexorably aircraft, knowledge does not that statement Ascribing a criminal motive to that pos- either defendant to the inference lead simply surmise. now is might have gun. That inference sessed the generally reluctant trial courts are While only two the logical if the facts showed been acquittal, the motions direct verdicts one else defendants and women or the no granted here. have been dismiss should Upon gun the car. placed have the in could spewed Notwithstanding the critical evidence by government, produced the the evidence logic, regardless of Duhart defies by Ms. however, logical inference equally it an the con- inherently suspicious nature of the it was gun was in the car when the case, jury people in this the duct of the four Indeed, by gov- the proved fact rented. its allowed to substitute not have been should implies gun how the or the logically ernment for what probably occurred about what place. belief in the first drugs got into the trunk cannot actually proved. We the Duhart, position to in a Ms. witness permit the verdict stand.. items, denied with the illicit see defendants Thus, government’s having done so. our suggesting we have substituted In speculation. “proof’ nothing more than has jury, the dissent judgment for that of the at the have looked point. this missed government seeks to overcome in key witness testimony government’s of the had a blue by arguing Mr. Jones problem Yet, favorable to gun. most to hold the bag of sufficient size the reasons wanting. it For size, absolutely nothing in have discovered despite there is nothing explained, quent testimony we have within that testi- change that she borrowed a mony beyond conjecture pro- personal of clothes and surmise and other items to take Moreover, any sequitur. her is a non vides the direct or with those circumstantial, tying patently statements are the defendants to the inconsistent and credulity, eyes stretch in gun drugs even of the discovered hidden in the impartial entirety most observer. ostensibly by trunk of car When the rented Ms. government’s key of the Duhart. peppered witness is with that land of incon- example, For the dissent states defendants sistency, we cannot turn our upon back had access to the trunk and stood near its premise invading under the prov- open sug- door on “at least two occasions” jury. duty appellate ince Our gesting provide proof, upon these facts which judges benign transcends such a review of heartily could have relied. We dis- the evidence. more, agree. more, Without and there is no Finally, the dissent further errs in assum- proof only by that defendants stood ing question judgment jury. we open by trunk. It would be the rankest noted, already As we simply believe speculation any juror infer from by the district court permitting erred by open the fact defendants an stood trunk jury to consider the case the first instance. possessed gun defendants had cocaine and a granted The court should have the defense and had hidden them that location. More- motion to dismiss at prosecu- the close of the over, irrationality of such an inference is judicial tion’s case. That judgment quite is a magnitude by increased in the fact that the province removed from the only items Duhart Ms. ever saw in defen- uniquely qualified one we are to render. possession dants’ were clothes defendants put in the trunk where were later found JUDGMENT OF CONVICTION IS VA- by Trooper Kelly. CATED. The mandate shall issue forthwith. Although correctly the dissent an states SAFFELS, Judge, Senior District appellate court cannot rule the credibil- dissenting.- witness, ity of a that is not what we have Because I cannot the decision done Ms. Duhart’s case. It is not deter- majority to substitute its- determination credibility mination of point out the testi- credibility of witness jury, for that of the I mony blatantly of a witness is inconsistent or dissent. logic. defiant of common Our statement of *7 credulity upon is based inter- outset, majori- From the it is clear that the nally contradictory utterances she made ty questioned credibility Tracy of Duhart testimony, upon her and not our reaction to consequently jury determined that Indeed, testimony. that govern- even the could not guilty have found the defendants argument ment its to referred Ms. Du- beyond a doubt.1 I reasonable fear the court story trip hart’s about the as “bizarre.” We has province jury invaded the believe, although thus taken most erroneously taken on the role of trier of fact. government, favorable to the the facts may “An appellate court not decide the which our observation of the of nature Ms. credibility that,is of witnesses as the exclu- testimony Duhart’s is patent, based are so sive task of jury the fact trier. is for [I]t reporting them weigh- does not constitute a to decide which witnesses to believe and ing credibility. of her which jury spoken, not. Once the has this example, assuming For may she testified truth- court reweigh credibility not of wit- fully when she said she believed she was Youngpeter, 349, nesses.” U.S. v. 986 F.2d returning Denver, (10th immediately Cir.1993). to her subse- Credibility 352-53 determi- majority 1. The credibility...." states: "... it is blatant Du-Ms. of dubious Once more the ma- credulity." Again, hart strained the limits of jority questions testimony of the witness majority attacks Ms. Duhart’s "Notwithstanding when it comments the critical " states: ... there no is doubt Ms. Duhart's spewed by logic_” evidence Ms. Duhart defies patently version of the events is inconsistent and
635 defendants: testified that the Ms. Duhart appellate jury, not the for the are nations trunk; at the rear of Uresti-Hernandez, to the were had access F.2d 968 v. court. U.S. Cir.1992). two open trunk on at least (10th ear with the 1042, 1045 occasions; certain items when carried is suffi- evidence determining whether “In up trunk rear of the car with the at the were or weigh evidence will [w]e cient.... brought passen- were not into and which Appellate credibility. reversal determine under compartment; conducted search ger be evidence should insufficient grounds of hood; pre- and under the the dashboard the failure cases where confined Barney asleep when Officer tended to be need not The evidence clear. is the road. the car to the side of pulled every condition save unconnected to Cardono-Usquiano, 25 v. guilt.” U.S. are, juries free to jury, as all Cir.1994). (3d 1194, 1201 F.3d testimony. It is inconsistent this believe appellate for us to now the role of courts only if no can reverse court appellate “An jury not free to believe decide defen have found the jury could reasonable reading of a testimony on the basis our This doubt. beyond a reasonable guilty dant “Only when the record contains record. cold jury verdict and a one strict standard weighed, regardless of how it is no v. lightly.” U.S. not be overturned will beyond guilty jury could find from which (8th Cir.1993), 1367, 1371 cert. Frayer, 9 F.3d doubt, may appellate court an a reasonable —U.S., —, 115 denied, U.S. Haney v. DePriest, 6 v. the verdict.” U.S. overturn (1994). A 77, 130 defendant 31 L.Ed.2d S.Ct. (7th Cir.1993). when, Only F.3d 1206 gain heavy reversal burden must meet credibility of the evi- weighing the without sufficiency of the evidence. claim of on a dence, con- but one reasonable there can be that no show reasonable must The defendant judgment may a trial proper clusion as beyond a him jury have found appellate court reverse judge or an added). v. (emphasis doubt Practice A Moore’s Federal 5 J. verdict. (1st Cir.1993), Innamorati, 460 996 F.2d (2d 1984). ¶ — ed. 50.07[2] U.S. —, denied, cert. 391 127 L.Ed.2d rare of those believe this is one I do not support contains evidence “if cases that argues that evidence The defendant there guilt, verdict or which innocence and consistent with proper conclusion States a conviction.” United one reasonable cannot Cir.1984). (10th properly Varoz, 775 I judgment. do believe v. are not implicitly concur we majority judgment seems to and that exercised “equally plausible judgment even offering question its discussion now free However, this court in United had we members though might, inference[s].” been (10th Hooks, F.2d 1530 States conclusion. jury, reached a different denied, S.Ct. Cir.), cert. I, therefore, respectfully dissent. (1986) clearly stated 90 L.Ed.2d *8 of “consistent with past use language in guilt” numerous innocence and Varoz, including was unfortunate
opinions, United decisions
and antithetical to v. United in Holland Supreme
States Court 127, 138, 121, 140,
States, 75 S.Ct. 348 U.S. (1954) Virginia, and Jackson L.Ed. 150 2781, 2793, 307, 326, sug It is erroneous
L.Ed.2d be conviction cannot
gest criminal hypothesis if a
sustained consistent innocence.
designed which is
Id.